Richmond Virginia School Board v. Virginia Board of Education Reply Brief for Petitioners

    IN THE SUPREME COURT OF THE UNITED STATES
__ Term 19__
No_____

WILLIAM J. MILLIKEN, Governor of the State of Michigan and ex-officio 
member of the Michigan State Board of Education; FRANK J. KELLEY, 
Attorney General of the State o f Michigan; MICHIGAN STATE BOARD 
OF EDUCATION, a constitutional body corporate, and JOHN W. 
PORTER, Superintendent of Public Instruction, Department o f Educa­
tion of the State of Michigan,

Petitioners,
-vs-

RONALD BRADLEY mid RICHARD BRADLEY, by their Mother and 
Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother 
and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE 
and DARRELL LOVE, by their Mother and Next Friend, CLARISSA 
LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, 
MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their 
Father mid Next Friend, MARCUS BURDEN; KAREN WILLIAMS 
and KRISTY WILLIAMS, by their Father and Next Friend, C. WIL­
LIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents

(Continued on Inside Front Cover)

RESPONSE OF DEFENDANT DETROIT 
BOARD OF EDUCATION TO PETITION 
FOR WRIT OF CERTIORARI FILED BY 

WILLIAM MILLIKEN AND FRANK J. KELLEY

GEORGE T. ROUMELL, JR.

LOUIS D. BEER 
Counsel for Respondent

Detroit Board of Education

RILEY and ROUMELL 
7th Floor -  Ford Building 
Detroit, Michigan 48226

Dated: June 12, 1972

P R I N T E D  B Y  H A M P S H I R E  B U S I N E S S  S E R V I C E ,  D E T R O I T ,  M I C H I G A N  -  1972



having children attending the public schools of the City of Detroit, 
Michigan, on their own behalf and on behalf of their minor children, 
all on behalf o f any person similarly situated; and NATIONAL ASSO­
CIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DE­
TROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 
231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; BOARD 
OF EDUCATION OF THE CITY OF DETROIT, a school district of 
the first class; PATRICK McDONALD, JAMES HATHAWAY and 
CORNELIUS GOLIGHTLY, members of the Board of Education of 
the City of Detroit; and NORMAN DRACHLER, Superintendent of 
the Detroit Public Schools; ALLEN PARK PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON 
SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN 
HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUB­
LIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, 
FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT 
OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE 
CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF 
THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKE VIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LIN­
COLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC 
SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DIS­
TRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DIS­
TRICT, OXFORD AREA COMMUNITY SCHOOLS, BEDFORD UNION 
SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVER- 
VIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, 
WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOOD- 
HAVEN SCHOOL DISTRICT and WYANDOTTE PUBLIC SCHOOLS, 
KERRY and COLLEEN GREEN, by their Father and Next Friend, 
DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSEMARY, 
by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHER­
RILL, KEITH, JEFFREY and GREGORY COULS, by their Mother 
and Next Friend, SHARON COULS, EDWARD and MICHAEL ROMES- 
BURG, by their Father and Next Friend, EDWARD M. ROMESBURG, 
JR., TRACEY and GREGORY ARLEDGE, by their Mother and Next 
Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL, by their 
Mother and Next Friend, MARY LOU PAUL, TRACY QUIGLEY, by 
her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, 
KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY 
SUNI, and TRI-COUNTY CITIZENS FOR INTERVENTION IN FED­
ERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAVID VIETTI by his Mother and Next Friend, 
VIOLET VIETTI, and the CITIZENS COMMITTEE FOR BETTER 
EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mich­
igan non-Profit Corporation, SCHOOL DISTRICT OF THE CITY 
OF ROYAL OAK, SOUTHFIELD PUBLIC SCHOOLS, GROSSE 
POINTE PUBLIC SCHOOLS,

Respondents.



IN THE

SUPREME COURT OF THE UNITED STATES 

NO_____________

WILLIAM G. MILLIKEN, et al,
Petitioners,

vs.
RONALD BRADLEY, et al

Respondents.

RESPONSE OF DEFENDANT DETROIT 
BOARD OF EDUCATION TO PETITION 
FOR WRIT OF CERTIORARI FILED BY 

WILLIAM MILLIKEN AND FRANK J. KELLEY

Defendant DETROIT BOARD OF EDUCATION, pursuant 
to U.S.S. Ct. Rule 21 (4), in response to the Petition for Writ 
of Certiorari filed by WILLIAM MILLIKEN and FRANK J. 
KELLEY, co-defendants herein, in partial support for the 
aforesaid petition, states as follows:

I.

Respondent DETROIT BOARD OF EDUCATION supports 
the Petition for Writ of Certiorari and agrees with petitioners 
MILLIKEN and KELLEY that the order issued by the District 
Court in this cause on September 27,1971 was ripe for appeal, 
and that the action of the U.S. Court of Appeals for the Sixth 
Circuit in dismissing the appeals of petitioners MILLIKEN 
and KELLEY and respondent DETROIT BOARD OF EDUCA­
TION was erroneous, for reasons set forth in this respondent’ s 
brief to the Court of Appeals, filed on February 3, 1972, and 
set forth in the Appendix hereto.



-  2 -

II.

Although petitioners raise and discuss two substantive 
questions in their petition, respondent DETROIT BOARD OF 
EDUCATION does not understand them by this petition to ask 
for review of any issue other than whether the dismissal of 
the previous appeals by the Court of Appeals was proper. 
Therefore, it does not appear necessary to state a detailed 
response to questions II and III as raised by petitioners.

As a matter of record the DETROIT BOARD OF EDUCA­
TION agrees with petitioners insofar as petitioners argue 
that the record in the trial court does not support a finding of 
the existence of a dual school system in the Detroit Public 
Schools or justify any remedy. If it should be found that some 
kind of remedy is appropriate, insofar as the petitioners argue 
that as a matter of law any remedy ordered must be restricted 
to the jurisdiction of the School District of the City of Detroit, 
and may not involve schools operated by other agencies of the 
State of Michigan, respondent DETROIT BOARD OF EDUCA­
TION disagrees.

CONCLUSION

While agreeing in part and disagreeing in part with peti­
tioners other contentions, respondent DETROIT BOARD OF 
EDUCATION supports the Petition for Writ of Certiorari for 
the purpose of reviewing the dismissal of appeals by the Court 
of Appeals.

Respectfully submitted 
GEORGE T. ROUMELL, JR. 
LOUIS D. BEER 
Counsel for Respondent

Detroit Board of Education
Riley and Roumell
7th Floor -  Ford Building

Dated: June 12, 1972 Detroit, Michigan 48226



-  A l -

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO__

RONALD BRADLEY, et al.,

vs.

WILLIAM G. MILLIKEN, et al.,

Plaintiffs-Appellants,
Cross-Appellee,

Defendants-Appellees, 
Cross-Appellants,

DETROIT FEDERATION OF TEACHERS, LOCAL 231, 
AMERICAN FEDERATION OF TEACHERS, AFL-CIO

and

DENISE MAGDOWSKI, et al.,

Defendant-Intervenor-
Appellee,

Defendants-Intervenor.

Appeal from the United States District Court 
for the Eastern District of Michigan 

Southern Division

ANSWER OF DEFENDANTS BOARD OF EDUCATION 
FOR THE

CITY OF DETROIT TO MOTION TO DISMISS APPEALS



-  A2 -

STATEMENT OF THE ISSUE

Is the order dated November 5, 1971, which incorporates 
the final findings of fact and conclusions of law that the De­
fendants Board of Education for the City of Detroit, et al have 
committed acts amounting to de jure segregation of the Detroit 
public schools contained in the District Court’ s Ruling on the 
Issue of Segregation, and which directs the Board to submit a 
plan of desegregation and an appealable order?

The Defendants Board of Education contend “ yes” .

\



-  A3 -

Defendants-Appellees, Cross-Appellants, the Board of Ed­
ucation for the City of Detroit, et al (hereinafter referred to as 
Board of Education) respectfully moves this Honorable Court to 
deny the Motion to Dismiss Appeals filed herein by Plaintiffs- 
Appellants and Cross-Appellees, for the reason that this Honor­
able Court has jurisdiction of this matter at this time because
(1) the order appealed from by the Board of Education is a final 
order within the meaning of 28 U.S.C. 1291, or in the alternative,
(2) is an appealable interlocutory order pursuant to 28 U.S.C.
1292 (a) (1).

In support of their prayer that the Motion to Dismiss should 
be denied as to their appeal, the Board of Education, et al show 
the following:

STATEMENT OF PROCEDURAL FACTS

Plaintiffs commenced this litigation filing a complaint on 
August 18, 1970 against the Board of Education of the City of 
Detroit, its members and the then Superintendent of Schools, as 
well as the Governor, Attorney General, State Board of Educa­
tion and State Superintendent of Public Instruction of the State 
of Michigan. Plaintiffs challenged the constitutionality of Act 
48 of the Public Acts of 1970 of the State of Michigan as it af­
fected certain plans of the Detroit Board of Education, and also 
alleged that the Detroit Public School System was and is segre­
gated on the basis of race as a result of the official policies and 
actions of the Board of Education. After making said allegations, 
the Plaintiffs in two and one-half pages of pleadings asked for 
certain relief including preliminary injunctions requiring the 
Board of Education to implement a plan of desegregation known 
as the “ April 7, 1970”  plan restraining implementation of the 
aforementioned Act No. 48 of Michigan Public Acts of 1970, re­
straining the Board of Education from all further school construc­
tion and requesting permanent decrees concerning the above, and 
enjoining the Board of Education from building schools, approv-



-  A4 -

ing policies, curriculum and programs “ which are designed to or 
have the effect of maintaining, perpetuating and supporting racial 
segregation in the Detroit School System”  and ordering Defendant 
School Board to institute a plan of desegregation.

This case was initially tried on Plaintiffs’ motion for pre­
liminary injunction to restrain the enforcement of the aforemen­
tioned Act 48 so as to permit the so-called April 7, 1970 plan to 
be implemented. The trial court ruled that the Plaintiffs were not 
entitled to a preliminary injunction, did not rule on the constitu­
tionality of Act 48, and granted a motion dismissing the cause 
as to all of the State Defendants.

This Court, in Bradley v. M illiken, 433 F. 2d 897 , 989 (6th 
Cir. 1970), held that the Trial Court did not abuse its discretion 
in denying the motion for preliminary injunction, but, reversing 
the trial court in part, held that portions of Act 48 were uncon­
stitutional and that the State Defendants should remain in the 
suit. By so doing, this Court recognized that at that time it had 
jurisdiction to hear the appeal, even though the matter was still 
pending in the lower court and there had not then been a trial 
on the merits.

Subsequently, the Plaintiffs sought to have the Trial Court 
direct the Defendant, Detroit Board, to implement the “ April 
7th”  plan prior to trial. The Court did not order implementation 
of the “ April 7th”  plan, but, instead, adopted a plan submitted 
by the Board of Education.

Plaintiffs again appealed to this Court, and again, the Court 
held that the Trial Court had not abused its discretion in refus­
ing to adopt the April 7, 1970 plan. This Court furthermore re­
manded with instructions to proceed immediately to a trial on the 
merits of Plaintiffs’ allegations about the Detroit School System. 
Bradley v. M illiken, 438 F. 2d 946 (6th Cir. 1971). Again this 

x Court did not question its jurisdiction to hear the second appeal, 
even though there had been no trial on the merits, but, instead,



-  A5 -

denied Plaintiffs the relief sought on grounds other than juris­
dictional.

The trial on the issue of segregation began April 6, 1971 
and was concluded on July 22,1971 after consuming 41 trial days.

On September 27, 1971, the Trial Court issued a “ Ruling on 
Issue of Segregation”  which is attached as Appendix A to the 
Plaintiffs’ motion herein.

In that ruling at page 25 (see Appendix A of Plaintiffs’ 
motion), the Court stated with particular finality:

In conclusion, however, we find that both the State 
of Michigan and the Detroit Board of Education have 
committed acts which have been causal factors in 
the segregated condition of the public schools of 
the City of Detroit. As we assay the principles es­
sential to a finding of de jure segregation, as out­
lined in rulings of the United States Supreme Court, 
they are: . . . ”

And at page 34 of the ruling, the Court stated:

“ Having found a de jure segregated public school 
system in operation in the City of Detroit, our 
first step, in considering what judicial remedial 
steps must be taken . . . ”

Pursuant to the above ruling, a pre-trial conference was 
held on Monday, October 4, 1971, the transcript of which has 
been attached to Plaintiffs’ motion herein as Appendix B. As 
the transcript reveals the entire purport of the pre-trial con­
ference on October 4, 1971 was directed towards a remedy im­
plementing the Court’ s ruling.

This pre-trial conference concluded with the Court setting 
a time table for the presentation of proposed implementation



-  A6 -

plans. Though counsel for Plaintiffs has suggested that at 
page 29 of the pre-trial transcript that the then counsel for the 
Board of Education waived the entering of an order, the Court 
did enter its order of November 5, 1971, which is attached to 
Plaintiffs’ motion as Appendix C, set forth therein the time 
table for the presentation of plans, and confirmed that as far as 
the Trial Court was concerned, its findings of fact and conclu­
sions of law on the issue of segregation had been made and 
were final.1 Furthermore, in their motion now before this Court, 
the Plaintiffs at page 6 concede that the Defendants had the 
right to insist on an order being entered.

It is also noted that the Trial Court had previously issued 
an injunction prohibiting the Defendant School Board from con­
structing any new school buildings. That order still remains 
in effect and the Court has enforced it and intends to do so as 
the Court’ s attached letter marked Appendix J attached hereto 
indicates.

ARGUMENT

REASONS WHY THE MOTION TO 
DISMISS APPEAL SHOULD BE DENIED

INTRODUCTION

This Court has jurisdiction over the Appeal of Board of 
Education from the Order of November 5, 1971 either as a final 
decision under 28U.S.C. 1291; as the term “ final decision”  
has been interpreted by the United States Supreme Court, by 
the Court of Appeals for the Sixth Circuit and by other Circuits; 
28 U.S.C. 1291 reads in part:

“ The Courts of Appeals shall have jurisdiction of

1 A s to th is confirmation, the Court’ s attention is  directed to the Trial 
Court’ s language at the outset o f its order o f  Novem ber 5, 1971: “ The 
Court having entered its  find ings of fact and con clu s ion s  o f  law on the 
issu e  o f  segregation  on September 27, 1971;’ ’



-  A7 -

appeals from all final decisions of the district courts 
of the United States . . . ”

If this Court does not deem the Order to be a “ final de­
cision”  within the meaning of §1291, then the only possible 
alternative interpretation is that the Order is interlocutory 
and in the nature of an injunction from which appeals are per­
mitted pursuant to 28 U.S.C. 1292(a) (1):

“ (a) The courts of appeals shall have jurisdiction
9

of appeals from:

(1) Interlocutory orders of the district courts 
of the United States, the United States District 
Court for the District of the Canal Zone, the Dis­
trict Court of Guam, and the District Court of the 
Virgin Islands, or of the judges thereof, granting, 
continuing, modifying, refusing or dissolving in­
junctions, or refusing to dissolve or modify in­
junctions, except where a direct review may be 
had in the Supreme Court;”

I.

THE ORDER OF NOVEMBER 5, 1971 IS A FINAL 
DECISION WITHIN THE MEANING OF 28 U.S.C.
1291 AS THE TERM “ FINAL DECISION”  HAS 
BEEN INTERPRETED BY THE UNITED STATES 
SUPREME COURT, 6TH CIRCUIT AND OTHER 
CIRCUITS.

It is ineluctable fact that none of the issues of fact or 
law raised in Plaintiffs’ complaint or Defendants’ answer re­
main before the Trial Court. All were disposed of by the 
“ Ruling on Issue of Segregation”  of September 27, 1971, and 
the subsequent order incorporating that Ruling on November 
5, 1971. All that remains is to fashion a remedy.



-  A6 -

plans. Though counsel for Plaintiffs has suggested that at 
page 29 of the pre-trial transcript that the then counsel for the 
Board of Education waived the entering of an order, the Court 
did enter its order of November 5, 1971, which is attached to 
Plaintiffs’ motion as Appendix C, set forth therein the time 
table for the presentation of plans, and confirmed that as far as 
the Trial Court was concerned, its findings of fact and conclu­
sions of law on the issue of segregation had been made and 
were final.1 Furthermore, in their motion now before this Court, 
the Plaintiffs at page 6 concede that the Defendants had the 
right to insist on an order being entered.

It is also noted that the Trial Court had previously issued 
an injunction prohibiting the Defendant School Board from con­
structing any new school buildings. That order still remains 
in effect and the Court has enforced it and intends to do so as 
the Court’ s attached letter marked Appendix J attached hereto 
indicates.

ARGUMENT

REASONS WHY THE MOTION TO 
DISMISS APPEAL SHOULD BE DENIED

INTRODUCTION

This Court has jurisdiction over the Appeal of Board of 
Education from the Order of November 5, 1971 either as a final 
decision under 28U.S.C. 1291; as the term “ final decision”  
has been interpreted by the United States Supreme Court, by 
the Court of Appeals for the Sixth Circuit and by other Circuits; 
28 U.S.C. 1291 reads in part:

“ The Courts of Appeals shall have jurisdiction of

1 A s to th is confirm ation, the Court’ s attention is  directed to the Trial 
Court’ s language at the outset o f its order o f  Novem ber 5, 1971: “ The 
Court having entered its  find ings o f  fact and con clu s ion s  o f  law on the 
issu e  o f  segregation  on September 27, 1971;”



-  A7 -

appeals from all final decisions of the district courts 
of the United States . . . ”

If this Court does not deem the Order to be a “ final de­
cision”  within the meaning of §1291, then the only possible 
alternative interpretation is that the Order is interlocutory 
and in the nature of an injunction from which appeals are per­
mitted pursuant to 28 U.S.C. 1292(a) (1):

“ (a) The courts of appeals shall have jurisdiction 
of appeals from:

(1) Interlocutory orders of the district courts 
of the United States, the United States District 
Court for the District of the Canal Zone, the Dis­
trict Court of Guam, and the District Court of the 
Virgin Islands, or of the judges thereof, granting, 
continuing, modifying, refusing or dissolving in­
junctions, or refusing to dissolve or modify in­
junctions, except where a direct review may be 
had in the Supreme Court;”

I.

THE ORDER OF NOVEMBER 5, 1971 IS A FINAL 
DECISION WITHIN THE MEANING OF 28 U.S.C.
1291 AS THE TERM “ FINAL DECISION”  HAS 
BEEN INTERPRETED BY THE UNITED STATES 
SUPREME COURT, 6TH CIRCUIT AND OTHER 
CIRCUITS.

It is ineluctable fact that none of the issues of fact or 
law raised in Plaintiffs’ complaint or Defendants’ answer re­
main before the Trial Court. All were disposed of by the 
“ Ruling on Issue of Segregation”  of September 27, 1971, and 
the subsequent order incorporating that Ruling on November 
5, 1971. All that remains is to fashion a remedy.



-  A8 -

These facts, by clear logic and ample precedent, allow 
only the conclusion that the above Ruling constitutes a “ final 
decision’ ’ within the meaning of §1291, which is appealable 
at this time.

With regard to precedent, there is more significance to 
the cases Plaintiffs fail to cite than those they do cite.

Plaintiffs’ sole reliance for all practical purposes is on 
Taylor v. Board of Education, 288 F. 2d 600 (2d Cir. 1961) 
in which the second circuit did hold that an order finding the 
existence of de jure segregation and mandating the school 
board to submit a desegregation plan was not appealable 
either as a final order, or as an interlocutory injunction with­
in the meaning of 28 U.S.C. 1292(a) (1). The Taylor decision 
is distinguishable from the case at Bar, is not the law of the 
Sixth Circuit, has not been followed on this point by any other 
Circuit, and most importantly, preceded by approximately 14 
months the decision of the United States Supreme Court of 
June 26, 1969 in Brown Shoe Company v. United States, 370 
U.S. 294, in which the Supreme Court held that an appeal from 
an order analagous to the order in the case at Bar must be in­
terpreted as a final appealable order.

There has been indication that the Second Circuit’ s posi­
tion on this point is not broadly accepted for some time. The 
late Mr. Justice Jackson, in reversing another decision of the 
Second Circuit which had denied appealability on the grounds 
of lack of finality, indicated as much:

“ The only issue presented by this case turns on 
the finality of a judgment for purposes of appeal, 
a subject on which the volume of judicial writing 
already is formidable. The Court of Appeals re­
solved against finality of the decree in question,

\ saying, however, that it did so against the unani­
mous conviction of the court as constituted but



-AQ-

in deference to a precedent established by a dif­
ferently constituted court of the same Circuit,
173 F. 2d 738. Because of this intracircuit con­
flict, we made a limited grant of certiorari. 338 
U.S. 811. That we cannot devise a form of words 
that will settle this recurrent problem seems cer­
tain; but in this case we agree with the convic­
tions of the court below and reverse its judgment.”  
Dickinson v. Petroleum Corporate Conversion 
Corporation, 338 U.S. 507, at 508 (1950).

Thus, the Second Circuit itself has long been split on the 
question of finality,and the Supreme Court, long ago, became 
dubious of the Second Circuit’ s views on finality. This alone 
is good reason for this Court not to blindly follow the decision 
of a split Second Circuit panel in Taylor.

There is a factual distinction between Taylor and the case 
at Bar. As a practical matter, the order in Taylor involved, 
basically, desegregating one school in a suburban district.
Here we are speaking of an entire school system, reputedly 
the fourth largest school district in terms of student enroll­
ment in the United States. Unlike Taylor, leaving the rights 
of the parties undetermined now at the appellate level could 
result in a great disservice to over 290,000 school children.

Much more on point than the dubious Taylor case is the 
more recent pronouncement of the United States Supreme Court 
in Brown Shoe Company v. United States, 370 U.S. 294 (1969) 
which dictates that the November 5, 1971 order be interpreted 
as a final appealable decision.

Brown Shoe Company resulted from a complaint brought by 
the United States government alleging that the merger of Brown 
Shoe Company and Kinney Shoe Company was in violation of 
Section 15 of the Clayton Anti-Trust Act (15 U.S.C. 25). The 
District Court held that the Brown-Kinney merger did indeed



-  A10 -

violate Section 15 and entered a judgment so concluding, but 
reserved ruling on divestiture until the filing of divestiture 
plans for doing so. The case reached the United States Supreme 
Court by direct appeal pursuant to the so-called Expediting Act, 
15 U.S.C.A. Section 29, which permitted direct appeals in the 
event of “ final judgment of the district court.”

In holding that the judgment of the District Court could be 
interpreted as final, even though no plan for divestiture had 
been entered, the United States Supreme Court, speaking through 
Mr. Chief Justice Warren, said, beginning at 308:

“ (5) We think the decree of the District Court in 
this case had sufficient indicia of finality for us 
to hold that the judgment is properly appealable 
at this time. We note, first, that the D is tric t 
Court disposed of the entire complaint filed  by the 
Government. Every prayer for re lie f was passed 
upon. Full divestiture by Brown of Kinney’ s stock 
and assets was expressly required. Appellant was 
permanently enjoined from acquiring or having any 
further interest in the business, stock or assets of 
the other defendant in the suit. The single pro­
vision of the judgment by which its  f in a lity  may be 
questioned is the one requiring appellant to pro­
pose in the immediate future a plan for carrying 
into effect the court’ s order of divestiture. How­
ever, when we reach the merits of, and affirm, the 
judgment below, the sole remaining task for the 
District Court will be its acceptance of a plan for 
full divestiture, and the supervision of the plan 
so accepted. Further rulings of the District Court 
in administering its decree, facilitated by the fact 
that the defendants below have been required to 
maintain separate books pendente life , are suf­
ficiently independent of, and subordinate to, the 
issues presented by this appeal to make the case



-  A l l  -

in its present posture a proper one tor review now. 
Appellant here does not attack the full divestiture 
ordered by the District Court as such; it is ap­
pellant’s contention that under the facts of the 
case, as alleged and proved by the Government 
no order of divestiture could have been proper.
The propriety of divestiture was considered be­
low and is disputed here on an ‘ a ll or nothing’ 
basis. It is ripe for review now, and w ill, there­
after, be foreclosed.

Repetitive judicial consideration of the same 
question in a single suit w ill not occur here.
(Citations Omitted)

A second consideration supporting our view is 
the character of the decree still to be entered 
in this suit. It w ill be an order of fu ll d ives ti­
ture. Such an order requires careful, and often 
extended, negotiation and formulation. This 
process does not take place in a vacuum, but 
rather, in a changing market place, in which 
buyers and bankers must be found to accom­
plish the order of forced sale. The unsettling 
influence of uncertainty as to the affirmance of 
the initial, underlying decision compelling di­
vestiture would only make still more difficult 
the task of assuring expeditious enforcement 
of the anti-trust laws. The delay in withhold­
ing review of any of the issues in the case un­
t i l  the details of a divestiture had been ap­
proved by the D is tric t Court and reviewed here 
could well mean a change in market conditions 
suffic iently pronounced to render impractical 
or otherwise unenforceable the very plan of 
asset disposition for which the litiga tion  was 
held. The public interest, as well as that of



-  A12 -

the parties, would lose by such procedure.”
(emphasis added)

The analogy of Brown Shoe Company on the point of issue 
here to the case at Bar is clear. That Brown dealt with anti­
trust law does not change the fact that it represents the true 
state of the law on this issue.

This becomes evident by noting the emphasized portions 
of the above quotation and comparing them to the facts in the 
instant case. Taken together, the September 27, 1971 Ruling 
and Order of November 5, 1971 answered, as in Brown, “ every 
prayer for relief” . The Plaintiffs did not prevail on the issue 
of segregation among faculty and administration. They pre­
vailed on all other issues. As in the Brown case, the only 
matter left is the implementation and supervision of a remedy 
in accordance with the Trial Court’ s final conclusion on the 
issue of segregation. As in the Brown case, if this Court of 
Appeals affirms on the merits “ the sole remaining task for the 
District Court will be its acceptance of a plan for a full divest­
iture, and the supervision of the plan so accepted” . Here it 
will be the acceptance and supervision of a desegregation plan.

On the other hand, if this Court finds on appeal that the 
Trial Court erred in its Ruling on the Issue of Segregation, 
then there will be no need for a remedy.

As was the appellant in Brown, the Board of Education is 
in an “ all or nothing”  position. The School Board’ s position 
is that there should be no order of desegregation just as the 
appellant in Brown claimed there should be “ no order of divest­
iture” .

As in Brown, there will be no “ repetitive judicial consid­
eration”  before this Court once this Court decides the basic 
segregation issue here which Defendants’ appeal raises.



Just as Mr. Chief Justice Warren in Brown recognized that 
a divestiture order is a complicated order demanding time and 
consideration because of market conditions, likewise a deseg­
regation order by its very nature is complex, not necessarily 
because of market conditions, but because of sociological, 
economic and changing population patterns which do require 
time. As in Brown, a delay here in withholding review will be 
contrary to the public’ s interest. If this Court finds no basis 
for remedy, then further action on remedy implementation is 
futile. If this Court finds that there is a basis for remedy, it 
will have established a firm footing for a remedy.

The Trial Court below seemed to merge the concept of de 
facto segregation with de jure segregation. The law of the 
Sixth Circuit is that a school board is not responsible for de 
facto segregation. Deal v. Cincinnati Board of Education,
419 F. 2d 1387 (1969). There is also recent indication that the 
United States Supreme Court recognizes that the Boards of Edu­
cation are not responsible for de facto segregation. See the 
Court’ s summary order in Spencer v. Kugler, 40 L.W. 3329 
(January 18, 1972).

We recognize that the Trial Court attempted to charge the 
Board of Education with de jure segregation, but this attempt 
was based on three isolated findings. One suggesting that the 
Board had in one instance bussed black pupils past a white 
school was not supported on the record for the bussing to the 
school involved was for physical facility reasons (newer school) 
rather than due to any attempt to segregate. The second finding 
concerned the Board’s previous optional attendance zones, 
which the Trial Court itself found the Board had actively sought 
to eliminate, even hiring an expert to do so. (See page 13 -  
Ruling) The third isolated finding was a suggestion that in “ at 
least one instance”  the Board did build a school “ which con­
tains black students” . We suggest that this is indeed an iso­
lated instance in a school system of over three hundred school 
buildings with over 295,000 school children.



-  A14 -

On the other hand, contrary to any other court decision in 
which a school board has been charged with de jure segrega­
tion, the Trial Court here, in effect, awarded the Board a summa 
cum laude degree in its efforts to advance integration. From 
page 18 through page 24 of its Ruling, the Trial Court spends 
considerable time setting forth the tremendous efforts which the 
School Board has expended in an effort to integrate. In fact, 
the Court begins its entire discussion at page 18 by the follow­
ing words:

“ It would be unfair for us not to recognize 
the many fine steps the Board has taken to 
advance the cause of quality education for 
all in terms of racial integration and human 
relations. The most obvious of these is in 
the field of faculty integration.”

The issue then is clearly drawn. Do isolated instances 
which the Trial Court has properly or improperly found to be 
discriminatory form a basis for a finding of de jure student 
segregation sufficient to support a comprehensive remedy 
when cast against the Trial Court’ s findings that the School 
Board has labored mightily to remove de facto segregation?
This crucial issue, if decided in the School Board’s favor, 
would be wholly dispositive of the case. If decided adverse­
ly to the School Board, it would not be susceptible to reargu­
ment in the hearings on proposed remedies. In either event, 
it is ripe for decision now.

The key, of course, is the practical interpretation of the 
word “ final” . The Court of Appeals for the Sixth Circuit has 
traditionally followed an enlightened view in interpreting the 
term “ finality”  in permitting appeals. Thus, in Gillespie v. 
United Steel Corporation, 321 F.2d 518 (1963), this Court 
held that a motion striking all references to the statute of the 

' State of Ohio, to unseaworthiness, or references to recovery



-  A15 -

for the benefit of brothers and sisters of the decedent in an 
action for recovery under the Jones Act was an appealable 
final order.

In upholding the Sixth Circuit on the issue of finality, the 
United States Supreme Court in Gillespie v. United States Steel 
Corporation, 379 U.S. 148 at 150 said:

“ Under Section 1291 an appeal may be taken 
from any ‘ final order of a district court’ . But 
as this court often has pointed out, a decision 
‘ final’ within the meaning of Section 1291 does 
not necessarily mean the last order possible to 
be made in a case . . .

And our cases long have recognized that whether 
a ruling is ‘ final’ within the meaning of Section 
1291 is frequently so close a question that de­
cision of that issue may either be supported 
with equally forceful arguments, and that it is 
impossible to devise a formula to resolve all 
marginal cases coming within might well be 
called the twilight zone of finality” .

In a school segregation case, this Court in a short order 
denied a motion to dismiss an appeal from an order similar to 
the order here, Board of Education of the City of Chattanooga 
v. Mapp (filed January 20, 1961).

We appreciate that in Taylor the Circuit Court criticized 
this Court’ s decision in Mapp. But then again Taylor was be­
fore Brown. We also point out to the Court that although 
Taylor was called to the Fifth Circuit’ s attention, the Fifth 
Circuit went on to ignore Taylor and held that the ordering of 
a desegregation plan dealing expressly with prohibited acts 
amounted to a mandatory injunction and was appealable. The 
Board of Public Instruction of Duval County v. Braxton, 326



-  A16 -

F. 2d 616, 619 (5th Cir. 1964).

The Sixth Circuit has been true to the philosophy of 
G illespie as subsequently expressed in Brown in permitting 
appeals of final orders such as this including those in school 
segregation case. We invite the Court’ s attention to its de­
cision in Kelley v. Metropolitan Board of Education, 436 F.
2d 856, 862 (6th Cir. 1970) where the Court upheld the ap­
pealability of an order saying “ pupil integration proceedings 
for an indefinite time is appealable as a final order under 28 
U.S.C. 1291.”

Obviously in Kelley, the Court believed that the matter 
should be reviewed by the appellate court because of its im­
portance to the parties involved. A similar view was taken 
by the Tenth Circuit in Board of Education of Oklahoma City 
v. Dowell, 375 F.2d 158 (10th Cir. 1967) where that Court 
did not even question its jurisdiction in reviewing an order 
requiring a local board to submit a plan with certain specified 
features.

The practical approach in a case such as the case at Bar 
is to permit the appeals by recognizing that the November 5, 
1971 order incorporated the September 27, 1971 ruling as a final 
appealable order. All the parties are entitled to know whether 
or not the lower court was correct in its decision just as the 
Plaintiff was permitted to find out even before trial whether 
Public Act 48 was constitutional, Bradley v. M illiken, 443 F.2d 
897 (1970), and whether the Trial Court abused its discretion 
in not implementing the so-called April 7, 1970 plan. Bradley 
v. M illiken, 438 F. 2d 945 (6th Cir. 1971). The only difference 
now is that the order is final and it is Defendants seeking re­
view.

It should be noted that the Plaintiffs-Appellees have also 
filed an appeal challenging the ruling of the Trial Court as to



faculty desegregation. If this Court of Appeals finds that De­
fendants’ Board of Education appeal cannot be interpreted as a 
final order, the Court still is saddled with Plaintiffs’ appeal. 
Since the ruling on that issue denied relief, it is as final a de­
cision as is going to be made. There would be no logic to hear­
ing only that portion of the case now. Thus, it becomes impera­
tive in the interest of judicial economy that all appeals be heard 
at this time.

We suggest to the Court that the rights of students are just 
as important as the right of corporations which were involved 
in the Brown case and for this reason, these appeals should be 
heard by this Honorable Court at this time.

II

EVEN IF THIS COURT DECIDES THAT 
THE ORDER IS NOT A FINAL ORDER,
IT IS STILL APPEALABLE TO THIS 
COURT AS THE COURT HAS JURIS­
DICTION UNDER 28 U.S.C. 1292 BE­
CAUSE IT HAS TH E EFFECT OF AN 
INJUNCTION.

If this Court should interpret the order of November 5,1971 
as not a final order that can be appealed under 28 U.S.C. 1291, 
it is the position of Defendants’ Board of Education that the 
order entered by the District Court on November 5, 1971, is 
appealable to the United States Court of Appeals for the Sixth 
Circuit as a matter of right under 28 U.S.C. §1292 (a) (1).

This statute is the direct descendant of the Evarts Act of 
1891, 26 Stat. 828, which was designed to facilitate the appeals 
of certain interlocutory orders. The relevant portion of the stat­
ute, as currently in force, reads as follows:

“ (a) The courts of appeals shall have jurisdiction
of appeals from:



-  A 18 -

(1) Interlocutory orders of the district courts of the 
United States, . . .  or of the judges thereof, grant­
ing, continuing, modifying, refusing or dissolving 
injunctions, or refusing to dissolve or modify in­
junctions, except where a direct review may be had 
in the Supreme Court; . . . ”

28U.S.C. §1292 (a) (1).

As interpreted by the courts and academic commentators, 
§1292 does not necessarily allow appeals of all orders which 
are labeled injunctions, nor does it preclude appeal of orders 
which are not labeled injunctions. Here, as elsewhere in the 
law, substance rules over form. The consensus of the judicial 
and academic authorities seems to be that §1292 permits ap­
peals from the granting or denying of injunctive relief when 
that relief goes to the heart of the case, and is not merely in­
cidental to the trial.

It is clear that the order which Defendant Board of Educa­
tion is challenging gives some or all of the substantive relief 
sought by a complaint. In fact, it is not too much to say that 
the order goes to the heart of the case. The District Court, 
after finding against Defendants’ Board of Education on the 
issue of de jure segregation, issued this order requiring the 
submission of a plan for desegregating the Detroit schools.
The plan ordered is directed precisely to the ultimate relief 
sought by Plaintiffs.

Of course, the fact that the November 5, 1971 order was 
not stated in terms of prohibition does not affect the fact that 
it is an injunction. Mere labels are not decisive in determining 
whether an order is an “ injunction”  under §1292 (a) (1), and it 
is clear that mere words of prohibition are not an essential ele­
ment of an injunction. In effect, Defendants’ Board of Educa­
tion has been prohibited, with all the sanctions available to the 

' District Court, from not submitting a plan. Furthermore, the



-  A19 -

Trial Court has enjoined the Board from engaging in any school 
construction and this injunction must be interpreted as part of 
the November 5, 1971 order.

Thus Courts of Appeals, in other cases involving the de­
segregation of schools, have recognized appealability of orders 
under §1292 (a) (1). For example, the Fifth Circuit concluded 
“ that the ordering of a plan dealing expressly with these pro­
hibited acts amounts to a mandatory injunction.”  Board of 
Public Instruction of Duval County v. Braxton, 326 F. 2d 616, 
619 ( 5th Cir. 1964). The Fifth Circuit has also upheld the 
appealability under §1292 (a) (1) of an order “ denying the 
plaintiff’ s motion to modify the plan.”  Steele v. Board of 
Public Instruction of Leon County, 371 F. 2d 395, 396 (5th Cir. 
1967). See also Board of Education of Oklahoma C ity v. Dowell, 
375 F. 2d 158 (10th Cir. 1967), where the Court did not even dis­
cuss the question of its jurisdiction to review a District Court 
order requiring a local board to submit a plan with certain speci­
fied features.

In all of these cases, the District Court’ s order was held 
appealable under §1292 (a) (1). In none of them was the order 
stated in prohibitory terms. In each case, the order concerned 
the preparation of a desegration plan, and the Courts of Appeals 
considered and decided the issues presented on appeal.

Following the lead of the Fifth Circuit and the Tenth Cir­
cuit, there is absolutely no reason why this Court of Appeals 
could, in the alternative, interpret the order of November 5,
1971 as appealable under Section 1292 (a) (1) as it is in the 
nature of an injunction. More importantly, the issue of segre­
gation is now ripe for review.



-  A 20 -

CONCLUSION

Based upon the reasons set forth above, there is no ques­
tion that the order of November 5, 1971 was properly appealed 
to this Court and this Court has jurisdiction in the matter as 
it was either a final decision within the meaning of 20 U.S.C. 
1291 or an interlocutory appealable order within the meaning 
of 28 U.S.C. 1292 (a) (1).

Respectfully submitted,

RILEY AND ROUMELL

By: GEORGE T. ROUMELL, JR. / s /
G eorge T. Roum ell, Jr.
Attorneys for Defendants 
Board o f Education for the 
City o f Detroit, et al

Dated: February 3, 1972

\



-  A21 -

APPENDIX J

(Ctjambtra ai 
jiltp ljrn  3 . JRoNj 

P i X r i r l  tub,.

Un it e d  St a te s  D is t r ic t  Co urt
For the Eastern District o r Michigan 

Bay City . Michioan. 4«70»

January 25, 1972

Mr. Louis D. Beer 
Riley and Roumell 
7th Floor Ford Building 
Detroit, Michigan 48226

RE: Civil Action No. 35257,
Bradley v. Milliken, 

_____e t a l .__________________
Dear Mr. Beer:

I have read your letter of January 20th respecting 
proposed modifications of the "construction*' injunction 
of the court in the above entitled matter. I consider 
it better practice in such matters to make a motion 
for the amendment of the injunction. I suggest that a 
motion be brought for that purpose and that the matter 
be noticed for the morning of February 10, 1972, at 
any time convenient to counsel. If there is no 
opposition, as seems to be the present indication, you 
or someone from your office, may simply appear and 
present the necessary orders for my signature.

Very truly yours,

SJR:b^g
XC: All counsel of record:

Mr. Lucas 
Mr. Ritchie 
Mr. Sachs 
Mr. Krasicky